This case arose under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
§ 7101, etseq.
(herein the Statute).

Upon an unfair labor practice charge having been filed by
the captioned Charging Party (herein the Union) against the
captioned Respondent, the General Counsel of the Federal Labor
Relations Authority (herein the Authority), by the Regional
Director for the Chicago Regional Office, issued a Complaint and
Notice of Hearing alleging Respondent violated the Statute by
refusing to negotiate with the Union over the Respondent's time off
incentive awards program.

A hearing on the Complaint was conducted in Dayton, Ohio, at
which all parties were afforded full opportunity to adduce
evidence, call, examine and cross-examine witnesses and argue
orally. Briefs were filed by Respondent and the General Counsel and
have been carefully considered.

Upon the entire record in this case, my observation of the
witnesses and their demeanor and from my evaluation of the
evidence, I make the following:

Findings of Fact

At all times material the American Federation of Government
Employees, AFL-CIO (herein AFGE) has been the exclusive collective
bargaining representative of various of Respondent's employees and
Council 214 has been the agent of AFGE for the purpose of
representing those employees. The collective bargaining unit is
comprised of approximately 73,000 employees located within the Air
Force Materiel Command (AFMC) Headquarters at Wright-Patterson Air
Force Base and at various other Air Force bases throughout the
country.

By correspondence of November 13, 1992 Respondent notified
the Union that it received authority to grant employees time off
from duty, without loss of pay or charge to leave, as an incentive
award. The program was new and it does not appear that the matter
had been previously discussed by the parties nor is the subject
addressed in their collective bargaining agreement. The document
sent to the Union included Air Force operating guidance regarding
the program. Respondent's cover letter stated, in part:

Should you wish to negotiate over any bargainable impact
and implementation relative to

this matter, your written proposals must be submitted to
this office not later than 15

workdays after your receipt of this letter in accordance
with Section 32.02 of the Master

Labor Agreement. We wish to implement this program on 10
January 1993.

Article 33 of the parties' collective bargaining agreement,
considered to be in effect at all time relevant to these
proceedings, is entitled "Negotiations During the Terms of the
Agreement." Section 33.02, entitled "Negotiations at Command
Level," provides, in relevant part:

SECTION 33.02: NEGOTIATIONS AT COMMAND
LEVEL

When a bargaining obligation is generated by a proposed
directive at Command level or a

directive issued above Command level, the following
procedures will apply:

a. The Labor Relations Office will notify the
designated Union official in Section 33.01

above of the intended changes in conditions of employment. A
reasonable time period/date

following the notifica-tion will be identified as the
implementation date. The Council President

or designee may request and be granted a meeting to discuss
the change.

b. If the Union wishes to negotiate, in accordance
with entitlements under CSRA,

concerning proposed changes, the Union will submit written
proposals to the Labor Relations

Office not later than 15 workdays after receipt of
Employer's notification. Negotiations will

normally begin within five workdays after receipt by the
Labor Relations Office of the timely

Union proposals. If necessary, the identified implementation
date may be postponed by the

Employer to complete negotiations in good faith.

c. The parties may mutually agree to delegate
responsibility for negotiations to subordinate

activities and local Union officials.

d. Agreements reached under this Section will be
promptly implemented by the Employer

in the appropriate form such as regulation, letter, or
operating instruction. Disputes over the

application of the implementing directive will be subject to
resolution under Articles 6 and 7 of

this Master Labor Agreement.

On November 18, 1992 the Union sent Respondent the following
letter:

This responds to your letter dated 13 November 1992,
received in this office on 13 November

1992, providing AFGE Council 214 written notification
pursuant to Section 33.02 of the Master

Labor Agreement (MLA) in connection with proposed changes in
conditions of employment as

referenced above.

AFGE Council 214 requests to negotiate over the intended
changes in conditions of employment

prior to any implementation in accordance with the Civil
Service Reform Act of 1978 (CSRA) and

MLA. In order that AFGE Council 214 may intelligently
develop proposals and subsequently

engage as such in negotiations, the following is
requested:

(X) The data as identified in the attached list
pursuant to Section 7114(b)(4) of the Labor

Statute (CSRA).

(X) A meeting to discuss the change pursuant to Section
32.02a of the MLA (AFGE is

prepared to meet at your earliest
convenience).

(X) An extension of the time limits to fifteen (15)
workdays after receipt of the items(s)

requested immediately above due to a current
heavy workload (A non- response by

4 days before the deadline will be interpreted
as agreed).

Your immediate response will be appreciated.

The record reveals that shortly after the Union's response,
Respondent provided the Union with an extension of the contractual
time limits, a briefing by Respondent regarding the time off
incentive awards program and the data the Union requested.

By letter dated December 11, 1992 the Union notified
Respondent that it had no proposals regarding the time off
incentive awards "at this time." The Union further stated "we do
reserve the right to initiate bargaining in the future if we deem
it necessary."(1) Respondent
implemented the time off incentive awards programs on January 10,
1993 without further communication with the Union. On January 20,
1993 the Union sent a letter to Respondent captioned "Subject:
Union Initiated Demand to Bargain/Time Off Incentive Awards,"
noting "Implementation Date: Upon Reaching Final Agreement" and
referencing, "Authority: AFGE/AFLC Agreement, 25 October 1988 and
Labor Statute." The letter stated:

Attached hereto are AFGE Council 214's proposals with
respect to Time Off Incentive

Awards, Public Law 101-509.

Should you wish to negotiate, your written proposals must be
submitted to this office not later

than fifteen (15) work days after receipt of this
notification in accordance with Section 33.02

of the Master Labor Agreement (MLA) and AFGE/AFLC Agreement
on Procedures for

Union Initiated Mid-Term Bargaining dated 25 October
1988.

Should you waive your right to negotiate by not submitting
timely counter proposals, the Union

proposals will become the agreement and we will require that
management implement.

I have set aside 10 February 1993 at 10:00AM here at the
Council office to begin Negotiations.(2)

The Union submitted the following proposals:

1. The employer will fairly, equitably and objectively
consider all eligible employees for the

subject award.

2. Employer agrees to a one time test basis only in 1993
to provide AFGE Council 214

selected for this award. This data will be reviewed to
mutually determine relevance to the

eligible bargaining unit population. The one time collection
of this data will have no effect on

the nomination or selection process.

3. Each local president, Council 214 president or their
designees may submit bargaining unit

members for nomination in accordance with subject
regulation.

4. The employer shall provide to the Council 214
president or designee the following

information about employees receiving the award:

(a) Name

(b) Job Title, Series, and Grade Level

(c) AFMC Facility and Organizational Symbol

(d) Telephone Number

5. The following additional information for each
bargaining unit member receiving an award is

also to be provided so that EEO can be monitored by AFGE in
conjunction with Article 19 of the

Master Labor Agreement:

(a) Race

(b) Color

(c) National Origin

(d) Sex

(e) Age

(f) Handicap

6. Employees will be notified when recommended for the
time off incentive award. If not

selected, employee will be advised in writing the rationale
for non-selection/approval.

7. Notices by organization will be posted quarterly on
official Bulletin Boards listing all recipients

of the award for the quarter.

8. Time period for award to be taken by employee shall
be jointly agreed to by supervision and

the employee.

9. Turn around time for submission of recommendation of
employee for the award and approval

shall not exceed 30 calendar days.

10. In qualifying for assignment of Category 3 awards
for merit promotion, (Time off awards,

accumulative, by quarter) are to be used to meet the
Category 3 requirements and qualify for

Category 3 awards.

11. No rights of the employee, the union or management
are waived by this agreement.

Respondent, in its reply to the Union of February 3, 1993,
stated, interalia:

By letter dated 13 November 1993 [sic], you were notified of
our intent to implement the time off

incentive awards program. You were reminded that should you
wish to negotiate over this initiative,

your written proposals must be submitted to this office not
later than 15 workdays after your receipt

of the notification letter in accordance with Section 33.02
of the Master Labor Agreement. You

submitted no proposals.

Since you waived your right to bargain by not submitting
proposals within the time limits outlined in

Section 33.02 of the MLA, we must reject your 20 January
1993 demand to bargain. In addition,

based on the decision by the 4th Circuit Court of Appeals
referenced in our 20 March 1992 letter,

the Union does not have the right to initiate bargaining in
accordance with the Civil Service Reform

Act of 1978, outside contract negotiations.

No bargaining even occurred between the parties regarding
the time off incentive awards program.

Discussion and Conclusions

The General Counsel essentially contends that Respondent was
obligated to negotiate with the Union concerning the Union's
proposals regarding the time off incentive awards program since the
matter was neither addressed in the previously negotiated agreement
nor waived by the Union during negotiations. Respondent essentially
contends that the parties' agreement regarding bargaining
procedures to be followed when a bargaining obligation arises
obligates the parties to follow that procedure if bargaining is
desired and the Union's failure to follow the negotiated procedure
extinguishes any further bargaining right or obligation on the
matter.

In my view Respondent fulfilled its responsibilities under
the collective bargaining agreement and the Statute before
implementing the time off incentive awards program which, beyond
question, was a matter concerning a condition of employment. Thus,
Respondent gave the Union notice of the pending change
substantially in advance of the implementation date, granted the
Union a meeting on the matter during which a briefing occurred,
supplied requested data and, at the Union's request, granted an
extension of time to submit negotiating proposals. The Union
clearly and unmistakably declined bargaining on the proposal within
the time-frame set forth under the terms of the negotiated
agreement which established mutually agreed upon procedures for
bargaining on a change such as the one herein. This conduct, in my
view, constituted a clear and unmistakable waiver of the Union's
Statutory right to bargain on the matter. Cf.U.S. Immigration and
Naturalization Service, 24 FLRA 786, 790 (1986).

Further, I give no effect to the Union's statement in its
December 11, 1992 letter that it had no proposals "at this time,"
and its statement that it would "reserve the right to initiate
bargaining" in the future if it was deemed necessary. There is no
contention or indication in the record that the Union could have
reasonably considered Respondent's lack of response to this attempt
to reserve a right to negotiate to constitute an acceptance of the
Union's position. The parties' agreement provided for proposals to
be submitted during a specific time frame. The Union may not
unilaterally amend the procedural requirements set forth in their
bilateral agreement simply by stating it could proceed in the
future without regard to the constraints imposed by their
negotiated agreement.

The General Counsel also argues that the Union's January 20,
1993 request to bargain constituted a demand for mid-term
bargaining on the time off incentive awards program, citing
Headquarters, 127th Tactical Fighter Wing,
Michigan Air National Guard, Selfridge Air National Guard Base,
Michigan (Selfridge), 46 FLRA 582
(1992) and Department of the Air Force, 3800
ABW/AU, Maxwell Air Force Base, Alabama (Maxwell), 39 FLRA 1461 (1991) where agency refusals to
bargain were found to have violated the Statute. While both of
those cases concerned a union demand for mid-term bargaining and a
claim of "waiver," both cases are distinguishable from the
situation herein. In Selfridge the agency
refused to enter mid-term negotiations with the union, which
represented the employees, over safety concerns of bargaining unit
employees relating to a prior staffing reduction in the agency's
boiler plant operations. In Selfridge there
was no claim that the union's bargaining request involved a
substantive or procedural matter contained in or covered by the
existing collective bargaining agreement and moreover, the timing
of the demand to bargain visavis the change was
substantially different from the case herein. Thus the Authority
held in Selfridge, at 586-87:

Here, the facts do not establish that the Union relinquished
its interest in negotiating over safety

concerns as part of a bargain reached with the Agency prior
to implementation. In this case, the

parties reached no agreement and the entire matter was left
unresolved. . . . Moreover, even

assuming that the Union, by its actions, waived its right to
object to the Agency's institution of a

system that entailed the use of rovers and personal duress
alarms to maintain safety after staff

reductions, it does not follow that the Union waived its
right to bargain over safety concerns

relating to breakdowns and failures in that system that
became evident only after several months

of experience with the reduced staffing patterns.

Maxwell involved a mid-term request
to bargain on agency smoking policy. In Maxwell, neither the terms of the agreement nor
bargaining history contained any reference concerning smoking
policy and the agreement specifically provided for a mid-term
reopener. The Authority found ". . . the mid-term reopener
provision allow[ed] negotiations on all subjects in the same manner
as basic contract negotiations over a new agreement, and would
therefore encompass even matter that had been waived by a party
under the current agreement." Maxwell, at
1462. In view of this conclusion, the Authority found it
unnecessary to pass on the Administrative Law Judge's finding that
the proposal "would have been manditorily negotiable at
any time unless there was a waiver."
(Emphasis in original.) Maxwell, at
1462-63.

In the case herein the parties' collective bargaining
agreement does not address the time off incentive awards program.
However, the agreement does set forth procedures for negotiating
mid-term changes in conditions of employment. Respondent followed
those procedures before implementing the change herein. On November
13, 1992 Respondent notified the Union of the January 10, 1993
implementation date. On December 11 the Union declined to negotiate
on the matter and the change was implemented as scheduled.
Ten days thereafter the Union demanded to
bargain on the program. None of the proposals encompassed any
matter which could not have been considered in the period the
collective bargaining agreement set forth for the submission of
proposals.

One of the most important benefits of having a collective
bargaining agreement is to provide the parties to the agreement
with some semblance of "stability and repose" with respect to
matters reduced to writing in the agreement which extends to the
procedures the parties agree to regarding changes during the term
of an agreement and the opportunity to negotiate regarding such
changes. Cf.U.S.
Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, 47 FLRA 1004, 1016-19
(1993). It is well settled that when an agency notifies a union
which is the collective bargaining representative that a change in
a condition of employment is envisioned, the union must make a
timely request to bargain if it wishes to preserve its right to
negotiate on the matter. SeeInternal Revenue Service (District, Region, National Office
Unit), 14 FLRA 698, 700 (1984) and Department of the Treasury, U.S. Customs Service, Region I
(Boston, Massachusetts), 16 FLRA 654 (1984) at 668-71.
See alsoArmy and Air
Force Exchange Service (AAFES), Lowry AFB Exchange, Lowry AFB,
Colorado, 13 FLRA 310 (1983). To allow the Union herein to,
in effect, extend its right to negotiate which was procedurally
circumscribed by the terms of its collective bargaining agreement,
and impose a continuing obligation upon Respondent to negotiate on
time off incentive awards within ten days after the change was
effectuated under the guise of enforcing the Union's right to
engage in mid-term bargaining would substantially undermine the
stability that contractual agreements seek to establish when
addressing substantive or procedural rights and obligations.

Accordingly, I conclude that by its refusal to negotiate
with the Union, in the circumstances herein, Respondent did not
violate section 7116(a)(1) and (5) of the Statute as alleged and I
recommend the Authority issue the following:

ORDER

It is hereby ordered that the complaint in Case No.
CH-CA-30438 be, and hereby is, dismissed.